No one in his right senses believes that the Commonwealth of Australia will be
called before the bar of public opinion, if there is such a thing, and asked to answer for
any of the things which are enumerated in this convention. - Archie Cameron, Liberal
Member for Barker, in the parliamentary debate on Australia's ratification of the
Convention on the Prevention and Punishment of the Crime of Genocide, June 1949. [0]

... the horrible crime of genocide is
unthinkable in Australia ... That we detest all forms of genocide ... arises from the fact
that we are a moral people. - Leslie Haylen, Labor Member for Parkes, in the same
parliamentary session.

Images of Genocide

Hephzibah Menuhin was a better musician than a sociologist. But a line in
one of her books remains with me: that the test of a nation's civility and civilisation is
the manner in which it treats its most underprivileged minority. An emotional rather than
an empirical measure, perhaps, but it isn't difficult to take her meaning. Who are the
most underprivileged? And how does Australia rank?

In South Africa, I studied "native policy". On arrival here in
1961, I studied "Aboriginal policy". People who know of my dual interest still
ask me, "Is it true to say that apartheid was a malevolent instrument of racial
oppression,

page 2 -

whereas racism in Australia was a form of ignorant innocence, or innocent
ignorance, an inability to understand or respect indigenous culture and values, albeit
with some nasty consequences?" Comparisons aside, how does one categorise Australia's
race relations?

Much of that inter-racial history I call "genocide". In the
current climate of heat in Aboriginal affairs, which I will describe, very few people use
the word. Almost all historians of the Aboriginal experience - black and white - avoid it.
They write about pacifying, killing, cleansing, excluding, exterminating, starving,
poisoning, shooting, beheading, sterilising, exiling, removing - but avoid genocide. Are
they ignorant of genocide theory and practice? Or simply reluctant to taint "the land
of the fair go", the "lucky country", with so heinous and disgracing a
label?

Australians understand only the stereotypical or traditional scenes of
historical or present-day slaughter. For them, genocide connotes either the bulldozed
corpses at Belsen or the serried rows of Cambodian skulls, the panga-wielding Hutu in
pursuit of Tutsi victims or the ethnic cleansing in the former Yugoslavia. As Australians
see it, patently we cannot be connected to, or with, the stereotypes of Swastika-wearing
SS psychopaths, or crazed black tribal Africans. Apart from Australia's physical killing
era, there are doubtless differences between what these perpetrators did and what we did
in assimilating people and removing their children. But, as we will see, we are
connected - by virtue of what Raimond Gaita calls "the inexpungable moral
dimension" inherent in genocide, whatever its forms or actions [1].

There are two ways of approaching the issue. One is to use the yardstick of
the only extant international legal definition of genocide, namely Article II (a) to (e)
of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide
of 1948:

In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:

Even so, the physical killing in (a) is seen by most Australians as
wholesale killing within a short or definable time-frame and in a localised geography,
such as death camps. Clearly there has been no Australian Auschwitz. Clearly, if there was
no Auschwitz here, then no genocide occurred here. Since 1997, as we will see, (e) has
become the sharp focus. There are flaws - perhaps grievous ones - in the Convention.
Nowhere is there mention of the role of the state as a perpetrator, yet it is the
signatory state that is required to report (itself?) to the United Nations. To obtain
Soviet support for the Convention, political groups were omitted, thus ensuring no
possible reference to the Soviet genocide of the land-owning peasants, the kulaks,
or to Stalin's elimination of those whom he defined as "enemies of the people".
Physical killing usually occurs in a compact time period - though not always so, as we
will see with the Tasmanian and Queensland Aboriginal experiences. Sterilisation and
removal of children imply a much more enduring time frame, over generations perhaps. We
know what constitutes serious bodily harm, but how do we calculate mental harm? The
Convention equalised in seriousness, and in time, the act of physical killing with the act
of forcibly removing children, an idea not easy to grasp. There could well have been a
scale, akin to the gradations of unlawful killing in the American criminal justice system,
of genocide 1, genocide 2, genocide 3. Certainly there are gradations of genocide -
differing motives, different orders and levels of intent, scale, method, outcome.
Certainly the quantum leap from images of Auschwitz to sad and ragged children clustered
in old sepia photographs is beyond most Australians. Critics can rail at the presence of
II (e), but it is there, in a law treaty ratified by Australia in 1949, albeit with
some remarkable protests [2]. Overlooked by almost
everyone, including genocide

page 4 -

scholars, are clauses (b), (c) and (d). Overlooked by everyone is Article
III of the Convention: not only is genocide a crime but so too is "conspiracy to
commit genocide", the "attempt to commit genocide" and "complicity in
genocide".

In the vocabulary of genocide there are three parties: the perpetrators,
the victims, and the bystanders - those without whom the perpetrators cannot effect their
purposes. Within the latter category, there are those who are simply indifferent, those
who are hostilely indifferent, those who are, in some degree, complicit, and those who
are, for want of a clearer or better term, companions to events. One can be a companion to
something even in the act of opposing it. Thus, in South Africa, I was complicit in much
of apartheid while teaching and writing about the evil of the system. It seems never to
occur to those who deny involvement, or legal or moral guilt, or who distance themselves
from past events, that they were, and are, indeed companions, and therefore in some degree
complicit.

The other measuring-rod is to be found in the much broader
conceptualisation suggested by the Berlin Director of the Centre for the Treatment of
Torture Victims, Christian Pross: that nineteenth-century race theory led to genocide by providing
the ideological tools for a biological solution to a social (or political) problem [3]. His less forensic concept facilitates a better
appreciation of justifications, ideologies, race theories, motives and moral defences.
However much I prefer this approach, we should not stray from the international law
wording and seek either proof or disproof in the definitions of historians and social
scientists. Professor Robert Manne says he wrestles with Hannah Arendt's articulation
following the trial of Adolf Eichmann in Jerusalem - that genocide is the desire (by
Nazis) that certain distinct people (Jews) "disappear from the earth" [4]. Certainly Arendt was trying to find words for that
which was (relatively) new in our moral (and physical) experience - a monstrous attack
upon human status and human diversity. Perhaps if she had looked at that much overlooked
half-brother to the Holocaust, the killing of 1.5 million Armenians by the Turks in
1915-16, she might have been less surprised and disconcerted

page 5 -

by Nazi behaviour. Manne believes, with Raimond Gaita, that genocide can be
committed by non-murderous means, such as the biological assimilation of Aborigines. He is
less certain about socio-cultural assimilation.

There are many more, and better, definitions of genocide than Arendt's [5]. Social science definitions assist us in analysis of
causes and in conceptualising events. But if we venture into this realm of improved
definitions, we will have no universally accepted yardstick - certainly no justiciable
basis for trials of genocidal practice or for civil suits of restitution by victims. Some
theorists will seek to narrow the definition and others will expand the genocidal universe
to the point of meaninglessness. Chalk and Jonassohn take the narrow view that
"genocide is a form of one-sided mass killing" by the state or some other
authority. Charny's much broader view sees genocide, in the generic sense, as the
"mass killing of substantial numbers of human beings, when not in the course of
military action ...under conditions of the essential defencelessness and helplessness of
the victims. [6]" He emphasises the victimness
of essentially "defenceless and helpless" people, but he insists on mass killing
of substantial numbers - which applies well to Australia's nineteenth century private
settlers' killing of Aborigines but not to the "sophisticated" state removal of
children. However, many cannot share his vision that the accident at the Chernobyl
nuclear reactor was "genocide resulting from ecological destruction and abuse".
The broadest view comes from the reputable scholar Henry Huttenbach: he defines genocide
as "any act that puts the very existence of a group in jeopardy". Courts would
find it impossible to pinpoint "any act", the meaning of "existence"
and what constitutes "jeopardy". Impunity in genocide is now an enormous issue,
and the wider the concept the less likely any court will be able to arrive at conviction
and punishment. It is quite significant that the 1998 Rome conference establishing the new
International Criminal Court had no hesitation in incorporating into Article 6 of the
Court's statute the verbatim definition given by the United Nations in 1948.

Misconstruing the nature of genocide, and failure to pay due attention to
the partly precise, partly elusive language of Article II, can lead to some startling

page 6 -

cases. There is an ongoing application before the ACT Supreme Court by four
Aborigines for the arrest of the Prime Minister and Deputy Prime Minister on the grounds
that by securing the Wik ten-point plan legislation in 1998 they committed specified and
unspecified acts of genocide, and that all members of federal parliament have committed
genocide by, inter alia, failing to enact an Australian offence of genocide [7]. The case could well be misguided and doomed,
depending on the evidence adduced. We need a firm basis for both discussion and action and
the only solid (and universal) definition, however flawed, is the one defined in
international law. Even so, we have to look to the philosophy inherent in the legal
wording of Article II, namely, that genocide is the systematic attempt to destroy, by
various means, a defined group's essential foundations. In this tighter legal sense,
Australia is guilty of at least three, possibly four, acts of genocide: first, the
essentially private genocide, the physical killing committed by settlers and rogue police
officers in the nineteenth century, while the state, in the form of the colonial
authorities, stood silently by (for the most part); second, the twentieth-century official
state policy and practice of forcibly transferring children from one group to another with
the express intention that they cease being Aboriginal ; third, the twentieth
century attempts to achieve the biological disappearance of those deemed
"half-caste" Aborigines; fourth, a prima facie case that Australia's
actions to protect Aborigines in fact caused them serious bodily or mental harm.
(Future scholars may care to analyse the extent of Australia's actions in creating the
conditions of life that were calculated to destroy a specific group, and in sterilising
Aboriginal women without consent.)

Aborigines - and First Contact

Aborigines probably landed on Cape York, in northern Australia, between -
and this is hotly contested at present - 24,000 and 60,000 years ago, forming about 500
tribes with different languages and customs, and numbering between 250,000 and 750,000 at
the time of the British arrival, or invasion, in 1788 [8].

page 7 -

Hunters and food-gatherers in an inhospitable land of low rainfall, they
had no animals that could be domesticated. Semi-nomadic, they roamed within set areas, in
domains they called (and still call) their "country". Their way of life
precluded a rich material culture, yet it wasn't "primitive" in the disparaging
sense in which so many observers noted, and still note, their "lack of alphabet"
and alleged "lack of arts, science and invention". Their stone-tool technology
predates European and Asian usage by thousands of years. Aboriginal social organisation
was highly complicated, their religion deep and complex, their art and myths rich and
varied. Of note was their strong and foolproof system of incest prohibition, their system
of kinship, reciprocity, and child-rearing. United by religious and totemic ties,
Aborigines held their land in trust, collectively and in perpetuity. Within the various
social units, kinship implied certain behaviour and reciprocal responsibilities. Patterns
of social interaction were tightly prescribed, co-operation within each group was high,
and group sanctions, by way of punishment for breach of rules, were harsh.

There was no formal political organisation, but there was a strong sense of
adjudication of disputes. They had a reign of social law. It was their lack of outwardly
visible political organisation - the absence of what western society sees as the
prerequisites of governance, namely, a system resembling a state, or organs akin to a
legislature, a judiciary, an executive - that placed Aborigines at a huge disadvantage in
confrontation with white settlement. That handicap was nowhere greater than in the
centuries-long doctrine that, in 1788, Australia was terra nullius, a land empty
but for fauna and flora. That legal (and political) fallacy was finally put to rest in
1992 in the monumental decision of the High Court in Mabo v the State of Queensland (Number
2). John Locke's seventeenth-century doctrine that property in land originally came from
tilling the soil - "mixing labour and land" - took a long time to die. As
recently as 1993, members of the Samuel Griffiths Society in Melbourne argued that the
Murray Island people (Eddie Mabo's country) should have land title, but not the
Aborigines, because the former were Melanesians who are "millennia ahead of the
Palaeolithics (Stone Age people) in terms of social organisation" and because, unlike
the "palaeos", they farmed [9].

page 8 -

Botany Bay was the site of Britain's new convict colony. On 28 January
1788, the First Fleet took possession of Australia in the name of King George III. From
the outset, relations between black and white were well intentioned at the official level
but rent with strife in practice. Whether "empty" or inhabited, whether there
was an extant stateless or state-ful society, official instructions to Governor Arthur
Phillip were "to endeavour by every means in his power to open an intercourse with
the natives and to conciliate their goodwill, requiring all persons under his Government
to live in amity and kindness with them". The Letters Patent establishing the colony
of South Australia in 1836 similarly contained a proviso that "nothing should affect
the rights of the natives in regard to their enjoyment or occupation of the land".

The Letters Patent and instructions to governors in the eighteenth and
nineteenth centuries were really benign utterances of far-away governments. The hard
clashes of interest on the spot were of a different order. Land was seized by the white
settlers as their only means of support. Aborigines retaliated by taking stock and
provisions - for which they developed a taste. Reprisals followed, with the advantage
always heavily on the white side. As the settlers spread out from the centres of
administration, government control lessened, newly introduced diseases spread among the
Aborigines, the birth rate dropped, the Aboriginal population declined markedly, and law
and order became impossible to maintain.

Decimation: Physical and Social

The Aboriginal experience includes both genocide in the Convention's sense
of the crime and a litany of deprivation. Deprivation is not necessarily genocide as such,
and we need to look at both phenomena.

Some 120 years ago, the English novelist Anthony Trollope visited
Australia. "There has been some rough work", he wrote:

We have taken away their land, have destroyed their food, made them subject to our
laws, which are antagonistic to their habits and traditions, have

page 9 -

endeavoured to make them subject to our tastes, which they hate, have massacred them
when they defended themselves and their possessions after their own fashion, and have
taught them by hard warfare to acknowledge us to be their master [10].

By 1911, 123 years after settlement, the "rough work" had reduced
the Aboriginal population to 31,000. Much of this discussion paper examines and explains
that catastrophic reduction. The 1996 census shows a tenfold increase, to 352,970 people,
1.97 per cent of the total population, identifying as Aboriginal or Islander, of whom
314,120 are Aborigines, 28,744 are Torres Strait Islanders and possibly 10,106 are
"both", that is, Aboriginal and/or Torres Strait or South Sea Islanders. The
Torres Strait people have a different history and a different culture from Aborigines.
Administered by Queensland, they were not allowed on the mainland until 1947. Generally
they have been treated as Aborigines, but as of 1990 they were given an official voice as
a distinct people. Between 10,000 and 12,000 in number, the South Sea Islanders have long
struggled for a separate identity, one that only began to be accorded them officially in
1994. They are descendants of men who were "blackbirded", that is, tricked or
kidnapped to be brought into Australia to work as "indentured labourers" in the
sugar-cane fields between 1863 and 1904. The imperial Pacific Islanders Protection Act
1872 ("The Kidnapping Act") made such behaviour a crime, but didn't stop the
practice: the last kidnapping was reported in 1894. About 68 per cent of black Australians
now live in major and smaller urban centres; 32 per cent remain in rural and remote areas.

The upsurge in numbers is due to several factors: we no longer kill
Aborigines with gun and poison; we have eliminated smallpox and similar plagues that
decimated the tribes; we have radically reduced the forced removal of children and the
practice of forced assimilation; health and medical services have alleviated some, but by
no means all, the factors causing high infant mortality and short life expectation; we
have very much better census questions (Aborigines were only counted in the census as of
1971, and only counted "properly" from 1986); and Aborigines and Islanders, in a
greater climate of

page 10 -

human rights, have been a little more willing to self-identity than
hitherto [11]. My current research in New South
Wales (on Aboriginal youth suicide) has shown that many people did not acknowledge their
strongly felt Aboriginality in the 1996 census, citing fears of what would be done with
the figures, or sheer antipathy to all "white systems", as reasons. My view is
that the population is probably closer to 450,000, perhaps 2.5 per cent of the total
population [12].

Yet Aborigines end the twentieth century at the very top, or bottom, of
every social indicator available: top of the medical statistics for diseases they didn't
exhibit even thirty years ago - coronary disease, cancer, diabetes [13], respiratory infections; bottom of the life expectancy table, at
50-55 years or less for males and around 55 years for females; with much greater rates of
unemployment, much lower home ownership and considerably lower annual per capita income [14]; an arrest and imprisonment rate grossly out of
proportion to their numbers; the highest rate of institutionalisation; with crimes now
prevalent which were rare as recently as the 1960s, namely, homicide, rape, child
molestation, burglary, physical assaults, drug-peddling and drug-taking; and, sadly, youth
suicide, no longer a criminal act, at a rate among the highest on this planet.

There is now a high degree of personal violence within groups; widespread
child neglect, including an insufficient supply of food and general care; a marked
increase in deaths from non-natural causes; much destruction of property, both
white-supplied and self-acquired; increasing attacks on white staff and visiting
professionals who work with groups; and a vast quantity of

page 11 -

alcohol and drug abuse, commonly offered as the sole
"explanation" of the above [15].

A major underpinning, almost an article of faith, of Australian race
relations history has been a Social Darwinist notion that the unfittest don't survive:
thus Aborigines, or especially those known by the term "full-blood", were
destined to disappear in the face of white civilisation. Succumbing to disease was all too
evident. Perishing at the premeditated hands of settlers was less so, but part of a
mindset that beheld extinction as inevitable. We need to open our eyes to just how much
premeditation has been at work in the 210 years since the British arrived. We also need to
set the present predicament of Aborigines and Islanders into context, and to recognise
just how much of the past underlies, even suffuses, the present-day life and responses of
Aborigines to today's circumstances.

Disease as Genocide

The "disease-as-genocide" argument needs brief assessment, first,
because it must be challenged and second, because of the strong tendency among many
historians to inculpate smallpox, and exculpate settlers, as the major factor in mass
Aboriginal deaths. To date, no one has refuted the hypothesis of the late Professor Noel
Butlin, an eminent economic historian, of introduced disease as an intentional weapon of
extermination. He concluded - albeit in a book he described as "explicitly
speculative and hypothetical" - that the single most effective killer of Aborigines
was smallpox [16]. More to the point, while the
origins of "the main killer" are obscure, "it is possible and, in 1789,
likely that infection of the Aborigines was a deliberate exterminating act". Butlin
was much influenced by his reading about the fate of Native Americans; he, in turn, has
influenced others on this issue.

page 12 -

Stannard, in an account of horrendous, wilful death in the Americas, has a
section entitled "Pestilence and Genocide" [17].
The key is and, not pestilence as genocide. I believe there is a time-gap
problem between western medical science's ignorance about contagion in those times of
colonisation and the assertion that barely literate colonists understood (or even
intuited) germ theory well enough to knowinglyuse pestilence as a weapon of mass
destruction. We began to understand that these diseases were spread by communicable
bacteria and viruses only a hundred years ago [18].
Why, then, the specific assertion about one disease as part of the genocidal armoury?

The first major smallpox epidemic among Aborigines was in April 1789,
fifteen months after first settlement. The second was in 1829-31, its origin never
determined, according to Frank Fenner in his monumental work on the disease [19]. The third major epidemic occurred between 1865
and 1869, generated almost certainly by the visits of Malayan trepang fishermen. Goldsmid
has posited three possibilities about 1789: first, that it was deliberate decimation, as
in America where, as an American scholar asserts, smallpox-infected blankets were
introduced to "extirpate this execrable race"; second, Aborigines stole bottles
of "variolous matter" brought by the surgeons of the First Fleet and
subsequently became infected; third, accidental Aboriginal infection from a local
"variolate" colonist [20]. There is no
evidence whatsoever of premeditation, a view supported by Watkin Tench, a captain in the
First Fleet, who suggested at the time that this was "a supposition so wild as to be
unworthy of consideration".

Stephen Kunitz has looked carefully at the impact of European settlement on
the health of Aborigines [21]. He cites the
massacres by that hideous creature of colonial administration, the Native (or Black)
Police [22], as the major cause of

page 13 -

Aboriginal death, followed by the "hunting propensities" of the
settlers and the poisoning of flour issued as rations. It wasn't, he contends, exotic
disease that produced a 25 per cent decline in the Queensland population, but rather
"the savagery of the settlers and their calculated slaughter of the indigenous
population". "Not all natives dropped dead whenever they got downwind of a
European", he concludes. Pueblo Indians, perhaps, but not Aborigines. I remain
unconvinced of both Butlin's thesis and the assertion that any of the colonial
decimation in North America and Africa was achieved by deliberately introduced
disease.

"(a) Killing members of the group"

Professor Kenneth Minogue contends that the present-day concern about
apology is a "most dramatic expression" of "an emerging moral
sentiment" that the treatment of Aborigines constitutes a case of genocide [23]. He views this kind of moralisation - especially
by Professors Raimond Gaita and Robert Manne - as both extreme and offensive, as
"exploiting ... a prefabricated emotional charge" [24]. He sees the Aboriginal experience as reprehensible, abhorrent
perhaps. He concedes, albeit grudgingly, that "Aborigines were raped, killed,
dispossessed and so on", but sees no genocidal impulses or qualities in any of that.
He doesn't see any racism in any of that. He questions the use of the word racism
as "the most lethal charge in the current rhetorical armoury". Rightly, he
contends that racism has many forms and gradations. But, wrongly, he is guilty of either
cynicism or superficiality when he defines the range of racism as being from "a
sentiment rather than a belief, involving rejection of, or contempt for, or simply unease
in the presence of, people recognised as different", through to racism being
(merely?) "a theory, such as Hitler's, about the respective biological
characteristics of distinct races". If only Hitler had been merely an intellectual
theorist. And if only Aborigines had created "simply unease" among the whites
who came into contact with them.

Racism has to be defined in this specific context: that beliefs
(rather than "sentiments"), however ill-founded, about "biologically
determined" physical and social characteristics, real or imagined, justify the
taking of action about, or against, a defined group because they are that group. We need
to spend less

page 14 -

time on white Australian "sentiments", "unease" or
"contempt", and much more on the beliefs that justified legal, extra-legal,
administrative and institutional action about Aborigines because they were
Aborigines. We need to see how much of that action was positive, how much negative. In
short, just how much or how little is Australian racism but innocent ignorance,
accidental, mere "rejection", discomfort with difference, "contempt",
"a prefabricated emotional charge", something "unthinkable" on the
part of "a moral people"?

It is true that diseases introduced by convicts and settlers - smallpox,
typhoid, tuberculosis, diphtheria, whooping cough, influenza, pneumonia, measles and
venereal disease - seriously depleted Aboriginal numbers. But it is to the genocidal
impulses and actions of the settlers that we must turn for evidence of Australia's
treatment of the Aboriginal peoples. Some contend that any death and destruction which
might have occurred was simply another instance of an unfortunate by-product of
colonialism, of indigenes dying (regrettably) for "economic reasons" as a result
of "progress" towards a cattle, timber, gold or silver industry. In other words,
so runs this specious argument, if Australia is guilty of anything, it is of the lesser
offence (but not crime) of "ethnocide" or "cultural genocide", that
is, the deprivations of opportunity to use a language, practise a religion, create art in
customary ways, maintain basic social institutions, preserve memories and traditions, and
co-operate in achieving social goals [25].

We know something about Article II (a), "killing members of the
group", because they, the Aborigines, were members of a definable group. We know
something about the physical killings, particularly in the latter half of the last and the
early part of this century. The first white settlers came to Tasmania in 1803, and by 1806
the serious killing began [26]. In retaliation for
the spearing of livestock, Aboriginal children were abducted for use in forced labour,
women were raped and tortured and given poisoned flour, and the men were shot. They were
systematically disposed of in ones, twos and threes, or in dozens, rather than in one
systematic massacre.

page 15 -

They were at risk from predatory sealers and settlers. In 1824, settlers
were authorised to shoot Aborigines. In 1828, the Governor declared martial law. Soldiers
and settlers arrested, or shot, any blacks found in settled districts. Vigilante groups
avenged Aboriginal retaliation by wholesale slaughter of men, women and children. Between
1829 and 1834, an appointed conciliator, George Robinson, collected the surviving
remnants: 123 people, who were then settled on Flinders Island. By 1835, between 3000 and
4000 Aborigines were dead. This wasn't simply a murderous outbreak of racial hatred. They
were killed, with intent, not solely because of their spearing of cattle or their
"nuisance" value, but rather because they were Aborigines. The Genocide
Convention is very specific on this point: the victim group must be at risk because they
are that group.

White settlers killed some 10,000 blacks in Queensland between 1824 and
1908 [27]. Considered "wild animals",
"vermin", "scarcely human", "hideous to humanity",
"loathsome", and a "nuisance", they were fair game for white
"sportsmen". In 1883, the British High Commissioner, Arthur Hamilton Gordon,
wrote privately to his friend William Gladstone Prime Minister of England:

The habit of regarding the natives as vermin, to be cleared off the face of the earth,
has given the average Queenslander a tone of brutality and cruelty in dealing with
"blacks" which it is very difficult to anyone who does not know it, as I
do, to realise. I have heard men of culture and refinement, of the greatest humanity and
kindness to their fellow whites, and who when you meet them here at home you would
pronounce to be incapable of such deeds, talk, not only of the wholesale butchery
(for the iniquity of that may sometimes be disguised from themselves) but of the individual
murder of natives, exactly as they would talk of a day's sport, or having to kill some
troublesome animal.

In 1896, Archibald Meston was appointed as Royal Commissioner to
investigate the slaughter. In the same year, he produced his Report on the Aborigines
of North Queensland[28]. The treatment of the
Cape York people, he wrote, was "a shame to our common humanity"; their
"manifest joy at assurances of safety and protection is pathetic beyond expression.
God knows they were in need of

page 16 -

it". Aboriginal people met him "like hunted wild beasts, having
lived for years in a state of absolute terror". He was convinced their only salvation
lay in strict and absolute isolation from all whites, from predators who, in no particular
order, wanted to kill them, take their women, sell them grog or opium. The Aboriginals
Protection and Restriction of the Sale of Opium Act 1897 followed. Apart from some
changes to its wording, this remained in force until 1985. In 1939, the statute was
amended slightly and renamed as the Aboriginals Preservation and Protection Act. In
our age of environmentalism we are used to the notion of "protected species" in
the context of, for example, exotic eagles or rare marsupials. "Protected
Aborigines" meant just that: a genus which had to be saved from the murderous
impulses and practices of settler Australians.

The history of Aborigines in Western Australia was little different [29]. There were hundreds of massacres between
settlement and the 1920s, with the last of them, the Forrest River killings, as late as
1926. This was the only episode to result in a Royal Commission - yet another such
judicial inquiry resulting in the acquittal, and then promotion, of the two police
officers involved in the shooting, and then burning, of perhaps 100 people. One massacre
or mass murder is not genocide, but given the pattern and propensity of such actions, one
must conclude that Raphael Lemkin was correct when, in 1944, he coined the word genocide
to mean co-ordinated or systematic actions aimed at destroying a racial, ethnic or
religious group's essential foundations. He didn't say the killing had to be wholesale, or
in a compacted time frame, or in specified killing fields. Nor did the Genocide Convention
which followed his work.

The history of Aborigines in South Australia was rather different. The
early whalers and sealers at the start of the nineteenth century were brutal: they killed
and kidnapped. But from 1836, when permanent settlement began, the colonists forged a more
independent line, on all matters, than their colonial brothers and sisters elsewhere.
Although dispossessed of land, and their culture and customs abrogated in various ways,
there was less shooting and poisoning than in other colonies. (Aborigines argue that this
was because there were fewer to shoot, following the smallpox epidemic that came with
settlement.)

page 17 -

There was a massive population loss in central Australia - particularly in
the region of what is now Alice Springs - between 1860 and 1895. Kimber speculates that 20
per cent may have died from influenza, typhoid and other introduced diseases. But some
1750, or 40 per cent, of the Aboriginal population, were (mostly) shot in what was
euphemistically called "dispersal" [30].
A Native Police lieutenant, giving evidence in 1861, was asked what was meant by
"dispersing". "Firing at them", was his reply, but "I gave strict
orders not to shoot any gins [Aboriginal women]". Another euphemism was that troopers
were out shooting "kangaroos". An early observer, E. M. Curr, writing in The
Australian Race in 1886, concluded: "The White race seems destined, not to
absorb, but to exterminate the Blacks of Australia".

"(b) Causing serious bodily or mental harm to members of the
group"

Courts hold trials, that is, efforts to examine and determine causes or
issues. In this section I do not bring the charge that Australia, in the name of
protecting people against physical killing, instituted policies and practices that led to intentional
"serious bodily or mental harm" to Aborigines (Article II(b)). But there is
certainly room for exploration of an argument that protection, however well intentioned,
resulted in disaster of a most harmful kind.

Protection legislation began in an elementary way in the 1840s: by 1843,
five of the colonies had appointed Protectors. Protection, in earnest and in great
legislative detail, began in Victoria in 1869 and 1886, in Western Australia in 1886, in
New South Wales in 1909, in South Australia in 1911, in the Northern Territory in 1910 and
1911, in Tasmania in 1912 [31]. Most of these laws
were predicated on the philosophy of "soothing the dying pillow" of a race near

page 18 -

extinction. Given that there was a widespread assumption that Aborigines
were dying out, settlers fulfilled the prophecy by acting to ensure that such was indeed
the outcome.

There were to be two protective fences against genocide in most of
Australia: the legal one, which was soon found to be insufficient, followed by the
geographic one of gross isolation, the additional barrier against white predators. Law
would keep whites out and Aborigines in protective custodianship. Geographic
location would see to it that no one could get in, or out. Government-run settlements and
Christian-run missions were established in inaccessible places to protect the people from
their predators; to encourage, sometime to coerce, Aborigines away from the "centres
of evil"; to allow for the Christianising and civilising process in private and away
from temptations; to enable better ministration - in the quiet of a hospice, so to speak -
to a doomed, remnant people. Catherine deMayo has explained why "mission"
Aborigines came to be where many still are [32]. A
Lutheran pastor visiting Bloomfield River in Cape York in 1898, said, "All the
mission can really achieve for them is a kind of Christian burial service". Another
concluded that "the Christian Church and the Government can but play the part of
physicians and nurses in a hospital for incurables". These "children of
darkness" needed places like Yarrabah, near Cairns, described as "splendidly
secluded". Some Christian views of Aborigines were no better than those of the
squatters and "sportsmen". In the 1870s, a clergyman in Queensland wrote:

If our instincts are true we must loathe the aborigines as they are now, less estimable
than the mongrels that prowl like them in the offal of a station. By the ashes of their
fire ... they are crouched with their knees up to their chin and with a half idiotic and
wholly cunning leer on their faces, their hair matted in filth ...

The missionaries did not simply supply a nursing service for
"incurables", or a burial service: they became active agents of various
governmental policies, such as protection-segregation, assimilation, so-called integration
and some of the latter-day notions like self-determination and self-management. More than
agents, they were delegated an astonishing array of unchallengeable powers. Uniquely - in
terms of modern missionary activity in colonised societies - mission boards became the sole
civil authority in their domains. They ran

page 19 -

schools, infirmaries, farms and gardens, provided water, sewerage and
similar public utility services, established dormitories, built jails, prosecuted
"wrongdoers", jailed them, counselled them, controlled their incomes, forbade
their customs and acted as sole legal guardians of every adult and every child. Almost
incidentally, they also tried to Christianise the inmates according to their varying
dogmas and doctrines, with little success. The eighteenth-century English radical
philosopher, Jeremy Bentham, has bequeathed us a succinct phrasing for such
"penitentiary-homes" - ones in which the objectives are "safe custody,
confinement, solitude, forced labour and instructions" [33].

Mission societies and government departments of Native or Aboriginal
Affairs set about the business of protecting the people. But in what spirit? As a student
of "native administration" in South Africa, Australia, Canada and New Zealand, I
find one facet of Australian practice noteworthy for its absence. Baron Lugard of Abinger,
the doyen of British colonial policy-makers from 1888 to 1945, always held that successful
administration was contingent on officials having a sense of love for the administered
people - and if not that, then at least a liking, and if not that, at least a respect for
them. By and large, Australian officials, lay and clerical, protected in a spirit of dislike,
in what Minogue would rightly call (in this particular context) a configuration of
contempt.

Reminiscent of the manner in which Jews have been held in contempt by
church, state and science, we have clerical disdain not only in the 1880s but also a
century later. In the early 1980s, the Roman Catholic Bishop of the North-West (of Western
Australia) was pressed to remove Fr Seraphim Sanz as superintendent of Kalumburu Mission.
He also dispensed with the philosophies of the general Catholic mission policy-maker, Fr
Eugene Perez, the man who (in a chapter of his book entitled "East Kimberley
Primitives") described Aborigines as corresponding to the Palaeolithic Age,
"primitives dwarfed to the bare essentials of human existence", people with
"inborn cunning", "lacking interest and ambition", with
"undeniable immaturity", forever seeking "the unattainable EL DORADO,
coming to them on a silver tray", people "with no sense of balance or
proportion", people who "want 'today' what cannot be given till tomorrow",
people to whom physical goods are "like the toy given to a child, which will soon be
reduced to bits, and thrown into the rubbish dump. [34]"
And so on.

page 20 -

Contempt also came in "scientific" guise. In 1913, we had the
views of Professor W. Baldwin Spencer, the man who was to become a significant and
powerful figure in Aboriginal affairs, as author, theorist and administrator:

The aboriginal is, indeed, a very curious mixture: mentally, about the level of a child
who has little control over his feelings and is liable to give way to violent fits of
temper ... He has no sense of responsibility and, except in rare cases, no initiative [35].

The revered Professor of Biology was dismayed: Aborigines didn't even
realise that they could make clothes out of kangaroo skins, and they didn't cultivate
crops or domesticate animals. "Their customs are revolting to us" and they were
"far lower than the Papuan, the New Zealander or the usual African native".
While Chief Protector of Aborigines in 1911-12, he declared that "no half-caste
children should be allowed in any native camp", after which he established the Kahlin
Compound in Darwin. Assuredly, neither Perez nor Spencer was an Alfred Rosenberg or a
Richard-Walther DarrČ - two of several key race theorists in the Nazi firmament - but in
their own way, in our especial Australian way, they were accomplished enough in
"scientific" race theory and, more importantly, in its practice.

The special laws show that the "protections" which parliaments
had in mind were as much from outside intruders as from the Aborigines themselves. In
Queensland, protection in theory quickly became discrimination in practice. Stopping the
predators from coming in resulted in Aborigines being incarcerated for life, even for
generations, on the remotest of places, like Yarrabah, Palm Island, Mornington Island,
Doomadgee, Bamaga, Edward River, Weipa, Bloomfield River and Woorabinda. Protection of
Aboriginal morality came to mean control of their movements, labour, marriages, private
lives, reading matter, leisure and sports activities, even cultural and religious rituals.
Protection of their income came to mean police constables - as official Protectors of
Aborigines - controlling their wages, their withdrawals from compulsory savings bank
accounts, rights to enter contracts of labour and of purchase and sale.

page 21 -

In the Northern Territory, from 1911 to 1957 and again from 1957 to 1964,
when all "full-blood" Aborigines were declared "wards", protection
included the need for permits to leave reserves and the Territory, prohibition on alcohol,
prohibition on inter-racial sex, prohibition on inter-racial marriage unless with official
permission, inability to vote or to receive social service benefits, employment at
specified, statutory Aboriginal rates of pay (well below the famous basic wage, which
Australia invented in 1907), exclusion from industrial awards, and so on [36].

In Queensland, protection included banishment from one part of the state to
another, for periods ranging from twelve months to life ("During the Director's
Pleasure" was the official phrase) for offences such as "disorderly
conduct", "uncontrollable", "menace to young girls", and "on
discharge from [urban] prison". It also involved imprisonment on the settlement or
mission, for a maximum of three weeks per offence, for offences only Aborigines could
commit: "being cheeky", "refusing to work", "calling the hygiene
officer a 'big-eyed bastard'", "leaving a horse and dray in the yard whereby a
person might have been injured", "committing adultery", "playing
cards", "arranging to receive a male person during the night", "being
untidy at the recreation hall", "refusing to provide a sample of faeces required
by the hygiene officer and further, wilfully destroying the bottle provided for the
purpose, the property of the department" [37].
Often charges were not laid concurrently: an "offender" would get three weeks
for one offence, then on discharge be "charged" with a separate offence, albeit
one arising from the same initial circumstance. The legal maximum of three weeks became a
continuum of six, nine, twelve weeks. In Western Australia there was
"protective" punishment for anyone who didn't "conduct themselves in a
respectable manner at all times", used "obscene language", drank alcohol,
didn't keep dwellings "clean and tidy", "cut down trees", wasted
water, didn't keep their dogs under control and who didn't "empty and clean"
troughs and coppers in the laundry.

The era of protection-segregation didn't end with the formal adoption of
assimilation policies by the national conferences of officials in 1937, and again

page 22 -

in 1951 and 1961. Despite proclamations of equality in those two latter
decades, the old policies and practices persisted. This was because the lay and clerical
bureaucrats who remained as guardians couldn't or wouldn't accept the
"elevation" of "their" wards to the status (of power, goodness,
correctness, civility) they enjoyed. The settlements and missions continued as before,
with draconian powers vested in officials - or "inspectors" as Bentham would
have called the [38]m - who maintained a regimen of
work, instruction, discipline, good order and hygiene. These bogey men, especially in
Western Australia and Queensland, were real enough. "The welfare", to use the
Aboriginal idiom, remains indelible in the contemporary Aboriginal psyche.

It was only after the Labor Party won federal office at the end of 1972
that these institutions began to be dismantled: the "inmates" stayed and became
citizens (in legal theory), but the "inspectors" of the draconian rules
"for the good order and discipline of the settlements" - the guards and the
gatekeepers - disappeared, at least in the flesh. Their spectres remained for long. What
has also endured is the myth, and the euphemism, that all of this treatment - over nearly
three-quarters of a century, at least - was simply and mundanely nothing more than
"the era of handouts".

In an ironic sense it was the removal of the draconian structures that
created, in my view, the present climate of violence and disorder in population centres.
All commentators, analysts and scholars attribute the present breakdowns, including the
propensity for suicide, to colonialism, racism, oppression, landlessness, population
relocations, and destruction of cultures and environments. The Royal Commission into
Aboriginal Deaths in Custody has an excellent summary of all of this, which explains the
underlying causes of the disproportionate numbers of Aborigines in custody [39]. All true, in the broad sense and sweep. But
there is a pinpointable set of actions which has been largely responsible for the present.
These "asylums" or "total institutions" [40], the settlements and missions, became "communities",
regardless of whether or not there was a communitas. In the

page 23 -

protection-segregation and wardship eras, settlements and missions were
designed as institutions, with the residents termed inmates. There were
locks and keys of a legal, administrative and physical kind. With the changes that came
shortly before and after 1972, these nineteenth- and early twentieth-century institutions
were euphemistically re-named "communities",and superintendents and
managers were transformed by administrative pen into "community development
officers". No one ever tried to understand or define the characteristics of
community, no one trained the officers in "development", and no one ever
consulted the black populations about their notions of a civil order, an organised
society, a polity. Born out of sheer political expedience, and a laziness about doing any
homework about these groupings and their common or uncommon character, bureaucrats
eventually gave these prison-like total institutions "freedom", a budget and
autonomy of a limited kind. Nobody gave thought as to how one de-institutionalised
institutions of such penitentiary flavour; no one gave lessons in autonomy; and,
importantly, nobody remembered, or wanted to remember, that the inmates-turned-citizens
were often people moved or exiled to these places, people who had to be disciplined or
punished, or people rounded up by desert patrols and simply placed there for the great
"social engineering" experiment of assimilation in the deserts and monsoon
lands. Most places were not peopled by a communitas, by groups in a
voluntary association, with a common tribal or linguistic membership and fellowship, a
common historical, or political, or cultural heritage, communalistic in their membership,
integrated, and socially coherent.

Infrastructure in the institutions was artificial. It was the omnipresence
of the "inspector" (usually the Director), the authoritarian laws and
regulations under special legislation, and the associated powers, together with mission
evangelism, which gave these institutions "viability" - of a kind. The struts
and pillars propping up the institutions began to be removed only in the 1970s and, in
Queensland, even later. Thus there is, in effect, a vacuum in many of these places, an
absence of an overarching or binding philosophy (however bad, or misguided), a lack of
system, without any goals beyond mere survival. The rallying call for land rights,
especially since 1969, and the protracted legal hearings, have filled only a very small
part of that vacuum. Lacking structure, many "communities" lack order, and have
become disordered societies. The much respected Aboriginal values of affection, reverence
for family and kin, reciprocity, care of the young and aged, veneration for law, lore and
religion, are floundering or have been displaced for now. In the section "Decimation:

page 24 -

Physical and Social" above, I listed the now commonplace examples of
"disorder". What began as protection against genocide has ended, for the
present, in a legacy of acute distress. However, I must stress that there is no suggestion
whatever in these observations that we return to the nightmare that was the wardship and
welfare era.

Forced Assimilation

An important contradiction occurred during the era of
protection-segregation: while Aborigines in some domains had to be protected and given
shelter from genocidal depredations, in others they had to be "dispersed" into
mainstream society. Thus while physical killing was a feature of Tasmania, Queensland,
Western Australia and the Northern Territory, a different facet of genocide was under way
in Victoria and New South Wales. As early as 1858 in Victoria, there was a call for
treating "half-castes" differently from "full-bloods". The (first)
Protection Board said, in relation to "half-castes", that it had a duty to
"interfere at once to prevent their growing up amongst us with the habits of the
savage, as they possess the instincts, powers of mind and altogether different
constitution of the white man". By 1886, forced assimilation was in full swing: the Aborigines
Protection Act 1886 (Vic.) declared that only "full bloods" and
"half-castes" over the age of 34 were entitled to aid. In other words, all
non-"full-bloods" under 34 were forcibly expelled from missions and reserves,
irrespective of marital or sibling status, of need, of ability to cope in the mainstream,
or whether they had anywhere to go in the outside world. The penalty for returning was a
£20 fine - the equivalent of about $20,000 in today's currency. Here the statute and the
practice overrode normally enforceable civil contracts, such as marriage.

Forced assimilation also meant the forcible removal of children from
parents and family and "relocation" to white foster parents, white adoptive
parents, or to special "half-caste" or "assimilation" homes. In 1905,
W. E. Roth, the Chief Protector of Aborigines in Queensland, ruled that the "social
status of half-caste children" had to be raised: "in the future, all such
infants taken from the camps should be brought up as white children". In his view,
"if left to themselves", the "half-caste girls became prostitutes and the
boys cattle thieves" [41]. In 1909, C. F.
Gale, the Chief Protector in Western Australia, wrote:

page 25 -

I would not hesitate for one moment to separate any half-caste from its Aboriginal
mother, no matter how frantic her momentary grief might be at the time. They soon forget
their offspring [42].

O. A. Neville, Chief Protector in the West from 1915 to 1940, was of
identical mind. He could do nothing for Aborigines, who were dying out, but he could
absorb the "half-castes":

The native must be helped in spite of himself! Even if a measure of discipline is
necessary it must be applied, but it can be applied in such a way as to appear to be
gentle persuasion ... the end in view will justify the means employed [43].

Neville had a "three-point" plan: first, the
"full-bloods" would die out; second, take "half-castes" away from
their mothers; third, control marriages among "half-castes" and so encourage
intermarriage with the white community. The "young half-blood maiden is a pleasant,
placid, complacent person as a rule, while the quadroon [one-quarter Aboriginal] is often
strikingly attractive, with her oftimes auburn hair, rosy freckled colouring, and good
figure ..." These were the sort of people who should be elevated "to our own
plane". In this way, it would be possible to "eventually forget that there
were ever any Aborigines in Australia" [44].
Here, in unmistakable language and intent, was ideology justifying why biology should
solve this "social problem". And so Neville established Sister Kate's Orphanage
in 1933, on the guiding principle that the good Sister took in those whose "lightness
of colour" could lead them to assimilation and intermarriage.

Neville's legacy - his mishmash of nineteenth-century race theory,
twentieth-century eugenics, his own brand of assimilationism, and illogic - is to be found
in the quite astonishing Natives (Citizenship Rights) Act 1944 (WA). A
"native" could apply to a magistrate for "citizenship" - something
never really lost to Aborigines, since they were always regarded as "subjects"
of the monarch, especially in their susceptibility to the criminal law. To become
"white", in effect, the applicant had to show a magistrate that he or she had
"dissolved tribal

page 26 -

and native associations", had served in the Commonwealth armed forces
and had received an honourable discharge, or was "otherwise a fit and proper person
to obtain a Certificate of Citizenship". But much more than that, the magistrate was
required to be satisfied of many things before an applicant was no longer "deemed to
be a native or Aborigine": first, that for two years before the application, the
applicant had "adopted the manner and habits of civilised life"; second, that
full citizenship rights were conducive to his or her welfare; third, the applicant could
"speak and understand the English language"; fourth, the applicant was "not
suffering from active leprosy, syphilis, granuloma, or yaws" [45]; fifth, the applicant was of "industrious habits" and
"of good behaviour and reputation"; and finally, the applicant was
"reasonably capable of managing his own affairs". There was, of course a catch -
one unequalled, I believe, in "native administration" anywhere in the world:
that if the Native Affairs Commissioner, "or any other person", made
complaint, a magistrate could revoke the certificate and the person became a native or
Aborigine once more. The grounds of complaint? The citizen wasn't "adopting the
manner and habits of civilised life"; or he or she had two convictions under the Native
Administration Act 1905-41 (WA) for the normally non-criminal offences discussed
above, like cutting down trees, being untidy, or leaving the laundry in a mess, or was an
habitual drunkard; or had, in the non-Aboriginal phase of their (Aboriginal) lives,
"contracted leprosy, syphilis, granuloma or yaws"! This statute was not repealed
until 1971.

In 1928, J. W. Bleakley, then Queensland Protector of Aborigines, was asked
by the federal government to report on Aboriginal policy - including the future of
"half-castes" - in the Northern Territory [46].
Those of 50 per cent or more Aboriginal "blood", "no matter how carefully
brought up and educated", will "drift back" to the black, he declared. But
those with less than 50 per cent "Aboriginal blood" should be segregated so that
they could "avoid the dangers of the blood call". Thus there should be
"complete separation of half-castes

page 27 -

from the Aboriginals with a view to their absorption by the white
race"; further, there should be complete segregation of blacks and whites "in
colonies of their own" and "to marry amongst themselves". Thereafter
"half-castes" were sent to specified institutions around the country, to be
"salvaged" because their "white blood" was their springboard to
civilisation and Christendom. It is indeed strange that many of these assimilation homes
were located in places of great isolation, for example Croker Island, Garden Point (now
Pularumpi) on Melville Island, the Bungalow in Alice Springs, Cootamundra Girls' Home and
Kinchela Boys' Home in rural New South Wales. The St Francis Home in Adelaide, Sister
Kate's Orphanage in Perth and Kahlin Compound and the Retta Dixon Home in Darwin were
among the few institutions located in white urban domains.

In the biological footsteps of Professor Baldwin Spencer, Dr Cecil Cook,
Chief Protector of Aborigines in the Northern Territory, believed that "the
preponderance of coloured races, the preponderance of coloured alien blood and the
scarcity of white females to mate with the white male population" would create
"a position of incalculable future menace to the purity of race in tropical
Australia". What was worse was that a large population of blacks "may drive out
the whites" [47]. I met Dr Cook in the early
1960s: having just migrated from South Africa, there was a terrible presentiment, when
talking with this man, that I hadn't left behind that not so beloved country.

The Neville-Bleakley-Cook philosophies became official policy in the
Territory in the early 1930s. The Administrator's Report of 1933 had this to say:

In the Territory the mating of an Aboriginal with any person other than an Aboriginal
is prohibited. The mating of coloured aliens with any female of part Aboriginal blood is
also forbidden. Every endeavour is being made to breed out the colour by elevating female
half-castes to the white standard with a view to their absorption by mating into the white
population [48].

State and Commonwealth administrations met in Canberra in 1937 to discuss
possible federal control over Aborigines and to adopt, if possible, some national and
overarching policies. Neville's ideas were very persuasive. In the end, each regional
authority held on to its domain, but the unanimous conclusion was that

page 28 -

"the destiny of the natives of Aboriginal origin, but not of full
blood, lies in their ultimate absorption by the people of the Commonwealth, and it
therefore recommends that all efforts be directed to this end". Efforts were very
much directed to such biological solutions. This wasn't killing but it was assuredly
practice directed at child removal, "breeding them white", and
"dismantling" everyone who was regarded as less than "full-blood". All
of this was very much more than a "sentiment" of "unease",
"contempt", or "rejection" about a people who were different. Did all
or any of this cause "serious bodily and mental harm to members of the group" -
as in Article II (b) of the Genocide Convention? Did any of this constitute an attempt to
physically destroy Aborigines, in whole or in part - as in Article II (c)? Is there any
substantial difference between the Convention's term "destroy" and Neville et
alii's "disappear"? Much has been written in defence of these men who
formulated policies in the "social and scientific contexts of their time". No
matter what spin is put on the mindset of these men, the intent was as repugnant then as
it would be now: to await the "natural" death of the "full-blood"
peoples and to socially engineer the disappearance, forever, of all those "natives of
Aboriginal origin". They were, indeed, progenitors of group disappearance. They were,
beyond doubt, complicit. They did conspire and they did attempt to commit genocide, that
is, ensure the elimination, in whole or in part, of a racial group (of
"half-castes"). None of them were Eichmanns, but all of them were imbued, in
Minogue's phrasing, with "a theory, such as Hitler's, about the respective biological
characteristics of distinct races". Here, indeed, was intentional elimination of a
race - not merely, or hardly, "a sentiment" involving "contempt".

"(e) Forcibly transferring children of the group to another
group"

In 1983, historian Peter Read published a short monograph on the
"stolen generations" in New South Wales [49].
The annual reports of the Aborigines Protection [later Welfare] Board were always
explicit: "this policy of dissociating the children from [native] camp life must
eventually solve the Aboriginal problem". By placing children in "first-class
private homes", the superior standard of life would "pave the way for the
absorption of these people into the general population". Further, "to allow
these children to remain on the reserve to grow up in comparative idleness in the midst of
more or less vicious

page 29 -

surroundings would be, to say the least, an injustice to the children
themselves, and a positive menace to the State". The committal notices prescribed by
law required a column to be completed under the heading "Reason for Board taking
control of the child". The great majority of responses were penned in one standard
phrase: "For being Aboriginal"!

Read's estimate of the number of children removed in New South Wales
between 1883 and 1969 is 5,625, allowing (as he notes) that there is a distinct "lack
of records". My assessment is a much higher figure. I have not examined such Board or
child welfare records as remain, but base my higher figure on an extrapolation of the
numbers of forced removals and institutionalisation among the 1,200 Aboriginal sports
people recorded in my recentbook on the history of the Aboriginal experience as
seen through the metaphor of sport [50]. (One
example: of the 129 men and women in the Aboriginal and Islander Sports Hall of Fame,
twelve were removed, another six, possibly seven were adopted by white families, while
another 22 grew up in institutions.) Read's figure of perhaps 100,000 across Australia
over a century rings a clearer bell. The National Inquiry into the "separation"
of Aboriginal and Torres Strait Islander children from their families, published in 1997,
summarises the situation: "we can conclude with confidence that between one in three
and one in ten indigenous children were forcibly removed from their families and
communities in the period from approximately 1910 until 1970" [51].

In July 1995, journalist Stuart Rintoul met Colin Macleod, a former patrol
officer with the Department of Territories, the agency responsible for Aboriginal welfare
in the Northern Territory from 1945 until the mid-1960s. Macleod, now a Melbourne
magistrate, believes that the policy was indeed dictated by the notion that
"half-castes" were "salvageable", whereas "full-bloods" were
not. While he disagrees (now) with the removal of children for purely assimilationist or
"experimentalist" reasons, he maintains that some removals were "for their
own good" and "not done heartlessly". Girls, he says, were at risk from
sexual chatteldom, either from the pastoralists who employed them or from the old men to
whom they were promised by tribal custom. In his book, Macleod talks about young girls
"becoming mothers way before they were old enough to be good

page 30 -

mothers, in conditions of unspeakable squalor and cruelty, often inflicted
by the child's father ... [52]" Agreeing that
he was one of the "benevolent dictators", he is strongly supported today by a
Catholic Brother who insists that "our belief was that we were doing something
wonderful for these children by providing them with a home".

In sharp contrast are the memories of the "salvaged" ones: there
was little that was wonderful in the experience; there was much to remember about physical
brutality and sexual abuse; and for the majority the homes were scarcely homes, especially
in the light of the then healthy Aboriginal practices of kinship, family reciprocity and
child-rearing in extended families. There is considerably more recorded and substantiated
evidence of abuse in the "safe homes" than Macleod claims was occurring in
Aboriginal environments. In 37 years of involvement in Aboriginal affairs, I have met
perhaps half a dozen men who liked Sister Kate's or Kinchela Boys' Home. I have yet to
meet an Aboriginal woman who liked Cootamundra Girls' Home or Colebrook. No one failed to
mention the incessant sexual abuse, or the destruction of family life. The late Professor
Bill Stanner believed, following a one-day visit, that places like Sister Kate's gave
children "a prospect of a better life". In the end, the views of the inmates
remain a better testimony.

In 1993-94, the Australian Archives presented an exhibition in Sydney,
Adelaide, Canberra and the Northern Territory entitled Between Two Worlds, a study
of the federal government's removal of Aboriginal "half-caste" children in the
Territory from 1918 to the 1960s [53]. It was a
brilliant depiction of one facet of genocide, without using the word. Throughout this
entire history, there were exceptionally few men and women who heard whispers in their
hearts that anything was awry or amiss [54]. But
among many exhibits were letters from the late E.C. (Ted) Evans, then Chief Welfare
Officer (and Macleod's boss), to the Administrator, urging that removals cease: because,
he wrote, they were intrinsically evil and because the world would never understand either
the

page 31 -

motives or the practices. This exhibition was to be yet another impetus to
the movement initiated by Aborigines - the Link-Up project - to discover and recover this
peculiar form of Argentine's "disappeared ones", Australia's desaparecidos.

By 1994, Aborigines at the Going Home conference in Darwin felt
sufficiently confident to begin planning civil lawsuits against governments and missions
for the forced removal of children, the break-up of family life and the physical placement
of people outside the ambit of areas now available (or claimable) under land rights
legislation. Only one civil case has been prosecuted by an Aboriginal woman in Sydney: she
was ill-prepared and lost her claim against New South Wales. So too did six Aboriginal
plaintiffs from the Northern Territory in what is known as the Kruger case [55]. They argued that the Aboriginals Ordinance was,
in effect, an unconstitutional law, one which gave powers to commit genocide, specifically
by removing children so that their religious practices could not be sustained. In what I
believe was a poorly constructed case - in part because the legal team tended to ignore
Article II (b) and (e) of the Genocide Convention, concentrated on the constitutionality
of the offending ordinance (rather than the powers exercised under that ordinance), and
depicted genocide as deprivation of religious rights - the High Court (in 1997) found the
ordinance valid because it was enacted "in the interests of Aborigines
generally".

Is it possible to have a law, asks genocide scholar Barbara Harff,
"that can, through a perverted collective morality, become a murderous weapon" [56]? Yes, indeed. That sentence is a reasonable
verdict on nearly all pre-1970 special legislation for Aborigines, statutes which began,
or purported to begin, as protection, but which became their value opposites in practice.
Most scholars and lawyers look to parliamentary debates and the legal language of statutes
as evidence of "policy". What has been so signally missing in Australia is
analyses of the administrations which sought to realise policies. My research has always
tried to examine, and to explain, the gaps, often the gulfs, between policy aspirations
and their translations into practice. The results are of interest: the administrative
machinery has stopped most policies of equality from coming to fruition but has ensured
that most policies of inequality emerge as true

Stolen or Separated?

In 1990 the Secretariat of the National Aboriginal and Islander Child Care
(SNAICC) organisation demanded an inquiry into child removal. In August 1991 an Aboriginal
media release mentioned this "blank spot" in Australian history:

The damage and trauma these policies caused are felt every day by Aboriginal people.
They internalise their grief, guilt and confusion, inflicting further pain on themselves
and others around them... We want an enquiry to determine how many of our children were
taken away and how this occurred... We also want to consider whether these policies fall
within the definition of genocide in Article II(e) of the United Nations Convention ...

In May 1995, the federal Labor government responded to Aboriginal and media
pressure by establishing the "National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families". The terms of reference were
reasonable and admirable. The Inquiry had to trace past laws, policies and practices and
their consequences, investigate ways of assisting in location of family, and "examine
the principles relevant to determining the justification for compensation for persons or
communities affected by such separations".

There were, however, some troubling aspects. First, the constant use of
"separation" in the terms of reference - a nicer word, implying some degree of
mutuality in the severing of these parent - child relationships, as well as keeping open a
door to a reuniting. Neither mutuality nor uniting was ever intended, or involved, in
practices which began in Victoria in the 1880s and ended in New South Wales in the 1980s
(not the early 1970s, as the National Inquiry states). The "removal" bureaucrats
envisaged absolute finality. Second, there was always the possibility that
"principles to determine justification for compensation" could, if they
eventuated, become prescriptive and therefore the only legal mechanisms for
compensation. Third, the reality of the "stolen generations" really didn't need
further proof, since the history and the consequences were well enough known, especially
to the victims. Nevertheless, the final report has proved to be a monumental document and
a pivotal point in contemporary race relations.

page 33 -

The National Inquiry reported in April 1997. Of the 118 official
investigations - judicial inquiries, parliamentary committee reports and royal commissions
- into aspects of Aboriginal affairs this century, this is by far the starkest and
strongest indictment, concluding that Australia has knowingly committed genocide through
the forcible transfer of children, as a matter of official policy, not just yesteryear but
as recently as the 1970s. A finding of genocide was presented: the essence of the crime,
it was stated, was acting with the intention of destroying the group, not the extent to
which that intention was achieved. The forcible removals were intended to
"absorb", "merge", "assimilate" the children "so that
Aborigines as a distinct group would disappear". That such actions by perpetrators
were in their eyes "in the best interests of the children is irrelevant to a finding
that their actions were genocidal". Here the inquiry posited, without stating it
plainly, an important theme about intent, which is the key phrase in the legal definition
of genocide. We always assume that the wording of Article II - "with intent to
destroy, in whole or in part" - means intent with male fides, bad faith, with
evil intent. Nowhere does it implicitly or explicitly rule out intent with bona fides,
good faith, "for their own good" or "in their best interests".
Starkman's is but one of several opinions that the reasons for the crime, or the ultimate
purpose of the deeds, are irrelevant: "the crime of genocide is committed whenever
the intentional destruction of a protected group takes place" [57]. Matthew Storey points out that "genocide does not require
malice; it can be (misguidedly) committed 'in the interests' of a protected
population" [58]. Gaita contends that
"the concept of good intention cannot be relativised indefinitely to an agent's
perception of it as good". If we could, he writes, then we must say that Nazi
murderers had good, but radically benighted intentions, because most of them believed they
had a sacred duty to the world to rid the planet of the race that polluted it [59]. (Which, incidentally, is what the senior Liberal
MP Joe Gullett was arguing in 1949, in footnote 3.) Further, there is, in my view, an
illogical catchcry of the defenders of removal that anything and everything
done by way of solution to a "problem" must, by definition, be worthy or brave
or well meant, rather than unworthy. Not so. Nor do they examine the extent of the

page 34 -

"problem" that justified removals, or the disproportion of the
"solution" to the "problem".

Throughout 1996, the National Inquiry pressed the new federal conservative
government to make a formal submission, as state governments had done. The government
baulked, stalled and eventually presented an anonymous, last-minute submission [60]. Doubtless written hurriedly by bureaucrats from
one or two federal agencies, the thrust of the submission was a "shotgun
scatter" of exonerations, mitigations and plain refusals to become involved. It
declared that "the Government can see no equitable or practical way of paying special
compensation to these persons, if compensation were considered to be warranted".
Further, restitution will "produce new injustices and inequities", "create
serious difficulties", and cause "adverse social and economic effects". It
will be "very difficult to identify persons", it's all "problematic",
and, rather ominously for existing programs, it will "divert resources in mounting or
defending cases".

The present federal government, in short, will not compensate for child
removal, though it was most generous in restitution for the buy-back of now illegal guns.
The government also takes the view that in judging these practices, "it is
appropriate to have regard to the standards and values prevailing at the time of their
enactment and implementation, rather than to the standards and values prevailing
today". The document ends with this remarkable rationalisation: "there is no
existing objective methodology for attaching a monetary value to the loss suffered by
victims". Yet Germany has (twice) given us a reparations model, and at the end of
1998 found the will to compensate the surviving slave labourers of over half a century
ago. The Swiss are about to give us another model. There is no insuperable problem
identifying the majority of those removed, or who had children removed. Restitution will
cause "intolerable inequities". To whom? What could be more intolerable than the
removals themselves?

The conservative government under John Howard was elected to its first term
in March 1996. When Bringing Them Home (the title of the National Inquiry report)
was released, media attention focused very heavily on the need for acknowledgment and
apology. When pressed about apology, the Minister for Aboriginal Affairs (Senator John
Herron) and the Prime Minister immediately

page 35 -

locked themselves into the exact wording of the bureaucracy's submission to
the Inquiry: restitution was not possible, there was no methodology for it, it would
create "new injustices", formal apology could open the way for lawsuits, all
this happened yesteryear, and, in a new version of "for their own good", removal
was akin to white Anglo children being sent to boarding school. Furthermore, some very
successful Aborigines had come through these assimilation homes. Finally, in the words of
the Minister for Aboriginal Affairs, "I don't believe we ever attempted genocide ...
This practice could not be described as genocide as it did not involve an intentional
elimination of a race. [61]" Not one of these
responses incorporated, let alone appreciated, the overwhelming sense of grief, pain,
confusion, and loss felt by the removed people who testified.

Australia's Denialism

"We make sense of ourselves as a people through history", writes
essayist Barry Lopez [62]. Indeed, but to do so
requires that first we admit the outside history, that is, the record and aggregate of
past events, the narrative in time, the chronicle of what has befallen Aborigines over two
centuries, with more bad rather than good faith. Instead, several leaders in important
fields prefer myth, rhetoric, propaganda, embellishment, and denial in order to blunt, or
blur, our sense of ourselves.

Denialism takes several forms. First, the most common at present, the
denial of any genocidal basis in Australian history, whether physical killing or child
removal. Second, the counter view that it is whites who have been the victims. Third, the
hypothesis that concentration on "unmitigated gloom" (Minogue's phrase)
overwhelms the reality that there has been more good than bad in Australian race
relations.

There is no serious or reputable dispute about generations having being
stolen. Solid research went into the genocide sections of Bringing Them Home.
Professor Robert Manne has spent two years on the matter, and intends spending the next
three analysing every aspect of the practices across the continent. One student has
produced a significant paper on the whole question of genocide and

page 36 -

child removal [63]. The defenders,
on the other hand, are remarkable for their thin arguments and, at times, silly
explanations. A small coterie of journalists, some in concert with one renegade
anthropologist, all lacking any academic or practical credentials in the field of
Aboriginal affairs, contrive to claim, inter alia, that the charge of genocide is
either pedantry or mischief; that Australia didn't commit genocide by forced removal
because, if we had, we would have prosecuted the crime (when committed by federal and
state bureaucrats?); that many or even most removals were with parental consent; that only
a "small number" (12,500) were removed, citing an Australian Bureau of
Statistics 1994 survey to support the mini-removal thesis; that removal was akin to white
kids at boarding school; that many benefited from removal; and that Aboriginal leaders
were assimilationists.

I refer now to the views of two anthropologists on the issue of
stolen children and genocide: those of Dr Ron Brunton and of Professor Kenneth
Maddock, who, indeed, has credentials in Aboriginal matters. I do so to
illustrate the quality of thinking, and writing, in defence of removals. Dr
Brunton's attack on the National Inquiry is couched as a protection of
"science": he is concerned at the "role of suggestion in creating
false memories of events that never really happened". He castigates the
failure to distinguish "truly voluntary" and "coerced"
removals. He reprimands the report for not listening to Lemkin, who
"cautioned against using the prohibition on genocide against policies which
sought to assimilate minority groups into the broader society". He cites my
long involvement in Aboriginal matters, asserting that my "silence" on
genocide over the years makes it look suspicious that I - "the doyen of
genocide studies" - suddenly use the word now, in the context of the
National Inquiry. Had I spoken out earlier, he contends, this "certainly
would have brought a very rapid end to the supposedly genocidal practices" [64].
Despite quoting the Genocide Convention definition in full, he still rails
against the "elasticity" of the crime, at the stretching of the mind
that is asked to equate misguided child welfare with the striped muselmnner[65]
hanging off the wire at Auschwitz. His argument is that if the latter is
genocide, the former simply cannot be. But international law, and its newly
created Criminal Court, encompasses both.

page 37 -

Professor Maddock has recently reviewed Colin Macleod's patrol officer
memoir [66]. He suggests that key anthropologists
like Bill Stanner and Phyllis Kaberry thought well of such places as Sister Kate's and
Yarrabah (respectively), places where "half-caste girls" especially could find
haven from sexual predation and depravity. He points to the "significance in their
silence" of anthropologists Marie Reay and the late Diane Barwick, neither of whom
ever mentioned genocide. He quotes the Australian Law Reform Commission report on
customary law as saying that "genocide is restricted to forms of physical
destruction". (For a legal research body, this is indeed a curious and most improper
distortion (and restriction) of the clearly-phrased international definition [67].) He talks of his fleeting "glimpse of the
restrictive regime" under the Welfare Branch, but ...

It would have seemed absurd, however, to impute evil to the regime, and I cannot recall
anyone doing so, let alone suggesting that genocide was being or had been until recently
practised under the guise of child welfare. My acquaintances included academics who
travelled widely in the Territory to do research, some of whom, like the outspoken
political scientist Tatz, the pre-historian Carmel White and the anthropologist John Bern,
were of Jewish background and interested in Israel. That even they, to the best of my
recollection, caught not a whiff of genocide throws into relief the hyperbolic excesses to
which some latter-day commentators have succumbed.

"It is tempting, if unkind, to suspect" that my writings about
communities in crisis may well be "sensation-mongering", writes Maddock. In his
"admittedly random travels between 1978 and 1998", Maddock says he didn't see
what I see. If I am correct, and if I am to be believed [68],
he argues, then the situations I describe are the very kind of degradations Macleod would
have deemed good grounds for child removal. Earlier, Maddock had written to me asking why
I didn't mention "genocide" at the time of my research into Aboriginal

page 38 -

administration in north Australia in the early 1960s. Until the 1970s,
Aboriginal administration, as opposed to Aboriginal anthropology, was a secret and
restricted field of action. Among other things, special permits, security clearances from
ASIO or state Police Special Branches, ministerial permissions, and clear chest x-rays
were required for access to the field [69]. Then,
my access to the field and to file material was strictly on the basis that I study the
administration of "wards" - "full-blood" people. The
"half-castes" had been "emancipated" some five years earlier and their
materials were closed to me. There were a handful of removals of "full-blood"
children, which I wrote about in the late 1970s [70].
Like so many in the 1960s, I wasn't fully conscious of an international law that
("elastically") defines physical killing, action resulting in physical and
mental harm, sterilisation, and child removal as co-equal acts of genocide. Further,
neither by nature nor nurture do Jews - even Zionistically inclined Jews - have especial
research sensitivities or intuitions. Finally, there is either a wilful or an unconscious
time-warp at play here: Macleod was removing children in the 1950s, at a time when little
or none of the post-1972 violences and breakdowns which I describe were occurring.

There is an array of conservative critics who refute genocide and/or the
gloom and mourning pervading Aboriginal colonial history. Few are reputable academics like
historian Geoffrey Blainey, political scientist Ken Minogue and anthropologist Ken
Maddock. Ron Brunton is an expert on kava, the alcoholic beverage made from roots
in the South Pacific. There are senior politicians, like John Howard, John Herron and
former premiers Wayne Goss and Ray Groom. Goss as Premier insisted on the removal of such
"offending" words as "invasion" and "resistance" from
Queensland school texts. Ex-Tasmanian Premier Ray Groom contended that there have been no
killings in the island state - making him, in effect, Australia's foremost genocide
denialist in the 1990s [71]. There is a
journalistic group vehement about the Bringing Them Home

page 39 -

material: Michael Duffy, Frank Devine, Christopher Pearson, Padraic
McGuinness. There is also a netherworld of radio talkback "philosophers", Alan
Jones, John Laws, Stan Zemanek, Howard Sattler. What many of these men have in common -
apart from a seeming antipathy to Aborigines generally and to the whole Aboriginal
"thing" - is that they do neither fieldwork nor homework. They are passionate in
defence of national pride and achievement, in denigration of our alleged "racist,
bigoted past". Like so many genocide denialists, they assert but don't demonstrate,
they disapprove but don't ever disprove. Nothing they adduce can fashion out of the
Aboriginal experience as many pluses as minuses, let alone more pluses. In a century of
statutes and rule by endless regulations, it is simply not possible to construe more than
25 per cent of the laws as granting rights rather than subtracting them. That percentage
is generous [72].

There is a very small but vocal group who behave in the manner of genocide
denialists generally: either asserting that genocide never occurred here, couldn't have
occurred here, could never occur here, or more commonly, nibbling at the edges, sniping at
weaker points, in the hope (or belief) that if they can demonstrate one error of fact or
figure the central and essential "contention" of genocide will fall apart.
Perhaps a more fruitful activity would be for these writers and talkers to use their
talents to urge upon the United Nations and the International Criminal Court a revised
definition of genocide (which is truly necessary, for reasons suggested earlier), rather
than waste effort denying the facts which are, however regrettably, consonant with the
present definition of the crime. And the deeper one probes, the more consonant our history
may be with that definition [73].

There is a mining and financial group, spearheaded by Henry Bosch and Hugh
Morgan, who engage in the somewhat astonishing tactic of casting Aborigines

page 40 -

as the villains of the piece. These men have created a climate of serious
attacks on these "past inequalities", one which began in the late 1970s with the
advent of theLand Rights Act, passed by the federal government, for Aborigines in
the Northern Territory, and which increased markedly following the Mabo verdict of the
High Court. Henry Bosch, a former head of the National Companies and Securities
Commission, stated publicly that Aborigines were "a backward Stone Age people"
who had "been getting away with murder for 200 years". Contemporary Australians
"cannot feel guilt about the past treatment of Aborigines", he claimed [74]. Hugh Morgan, the chairman of Western Mining
Corporation and a senior adviser to the present government, expressed this
"philosophy": "we are now dealing with a psychotic condition in which
people feel guilty or are persuaded they ought to feel guilty for crimes they did not
commit, could not have committed or were not committed at all" (my emphasis) [75]. He denigrates Aboriginal history as myth; he
also propagates the fallacious argument that Aborigines should not have land rights
because some clans were once cannibals [76]! This
general atmosphere, pushed vigorously by Morgan and mining consortia, led, in part, to
some grand mythology and even grander scare-mongering: that land rights after Mabo could
lead to a civil war, one which could only result in Aboriginal annihilation [77]; 80 per cent of Western

page 41 -

Australia was at risk from native title claims [78]; farms, backyards, swimming pools and urban mansions were, and are,
at risk from Aboriginal predators. This atmosphere was corrosive to the Mabo and Wik
decisions of the High Court, and a fuel to those who (later) supported the populist racism
of the One Nation party in the Queensland and federal elections in 1998. There was no
basis for any of these claims, in fact or in law (and, one suspects, they knew it).

In December 1992, Paul Keating became the first Prime Minister to publicly
admit the past:

... the starting point might be to recognise that the problem starts with us
non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition
that it was we who did the dispossessing. We took the traditional lands and smashed the
traditional way of life. We brought the diseases. The alcohol. We committed the murders.
We took the children from their mothers. We practised discrimination and exclusion .. [79].

By contrast, from his election in 1996 the present Prime Minister began a
systematic campaign against what historian Professor Geoffrey Blainey disparagingly calls
the "black armband" interpretation of Australian history [80]. This he defines as looking at the treatment of the Aborigines in a
way which allows "the minuses to virtually wipe out the pluses". This swing, he
says, "has run wild", and even the High Court is "that black armband
tribunal". Howard sympathises with those "Australians who are insulted when they
are told we have a racist, bigoted past" [81].
Priority should be given to health, literacy, and other practical programs [82]. He asks, in generalised terms (since he has no
jurisdiction over state school systems) that syllabuses be rewritten to accommodate his
view that Australian history is one of "pride and achievement". Of note was
Australia Day 1997: the Prime Minister declaimed that Australia should not be
"perpetually apologising for sins of the past". This, says Blainey, is John
Howard admirably "trying to restore sanity". The Governor-General, Sir William
Deane, in effect, admonished Howard in an

page 42 -

official speech, saying that the "past is never fully gone";
"it is absorbed into the present and future" and it shapes "what we are and
what we do" - and that, unless Australia achieves reconciliation by 2001, "we'll
enter the second century of our nation as a diminished people" [83]. Senator John Herron, on his reappointment as Minister for
Aboriginal Affairs in late 1998, complained about the "old" Aboriginal
leadership being "preoccupied with yesterday's battles": "I don't want to
get locked into debating the past", he said, as he called for a "new force"
of tertiary-educated leaders [84]. (The Minister
seems unaware that the modern generation of Aboriginal graduates is more knowledgable and
more steeped in their history than many of the "old" guard.) Justice Marcus
Einfeld has made the pertinent comment that he would "rather [wear] a black armband
than a white blindfold to shut out the truth" [85].

We live in an essentially a-historical age, perhaps even an anti-historical
one. Some people simply don't remember, or don't want to; others manipulate amnesia. Czech
novelist Milan Kundera's perception is that "the bloody years have turned into mere
words, have become lighter than feathers, frightening no one". No one can really
dispute the facts of the Australian case. But there is outrage at the surfacing of the
bloody years, the years of "rough work", the removal years - which is, at
bottom, an irritation with reminders, a determination to obliterate the past and present
by an emotion called optimism, one that seeks to overwhelm with the catchcry
"let's-look-to-the-future".

Racism, as Minogue says, appears in many forms. Here, it is not always as
malevolent violence. In conservative politics in this country, it poses as democratic (and
optimistic) liberalism and humanism. It also comes in the guise of what can be called
irreconcilable relativism. In August 1997, Tim Fischer, leader of the National Party and
Deputy Prime Minister, and Foreign Minister Alexander Downer, signed a significant
government White Paper. It specified an "unqualified commitment to racial equality
and to eliminating racial discrimination" - "a non-negotiable tenet of our own
national cohesion"; further, "racial discrimination is not only morally
repugnant, it repudiates Australia's best interests" [86]. Within that framework, however, both Fischer and

page 43 -

Downer fought tooth and nail against the Mabo judgment, the Native Title
Act, the Wik judgment, the stolen generations issue, and the Hindmarsh Bridge affair.
Fischer declared that land rights could lead to "a breaking up of Australia" and
that Aboriginal culture had not yet produced "a wheeled cart". During the Wik
debate, he promised his constituency there would be "buckets of extinguishment"
of native rights on pastoral leases. He excoriated Territory land councils as
"bloodsucking bureaucracies", in spite of their record of eighteen major mining
agreements post-Mab [87]o. He then praised his
National Party for "defeating" the racism of Pauline Hanson's One Nation party
at the October 1998 federal election.

Apology and Acknowledgment

As this century ends, Aborigines in general rate the stolen generations as
the most serious issue in their lives. Acknowledgment and apology are the key to any kind
of reconciliation process. Apology is acknowledgment. The Australian public has responded
to this National Inquiry in a quite unprecedented way: hundreds of thousands sign
"sorry books", thousands stand in queues to listen to removed people telling
their stories, many more thousands plant small wooden hands, signifying their hands up to
guilt or sorrow, on lawns and beaches across the country. The Australian Labor Party has
pledged apology on return to office [88]. State
governments, churches, mission societies, city and shire councils proclaim both sorrow and
apology. Minogue disparages this "festival of National Sorry Day, with its apparatus
of sorry books, tearfulness and a minute's silence". Even if one concedes that this
is "trendy breast-beating", it is significant because people have actually done
something in acknowledgmentt. And acknowledgment, however shallow or trendy, is the
antidote to denialism. Acknowledgment is also an expression of regret, remorse, sorrow, a
sense of shame - and not necessarily personal guilt. Jeremy Weber suggests that while
regret doesn't have to involve personal guilt, it does imply a deep sense of
responsibility - "the civic responsibility that comes from membership in a

page 44 -

society that cares about its present moral character" [89]. Gaita says "we didn't know because we
didn't care enough". True, and now there is a time and a place for regret that we
neither knew nor cared.

The outstanding exception to this flow and to this incipient social
movement of regret is the present federal government. The Deputy Prime Minister, Tim
Fischer, believes his generation "shouldn't accept the guilt of the previous
one" [90]. The Prime Minister offered a
personal gesture but claims that to apologise formally is to open the way to huge claims
of compensation. He also contends that he cannot apologise on behalf of Australia because
the nation comprises many migrant groups who were or are innocent of any of these actions.
Yet most ethnic groups have, on their own initiative, made official apology - on behalf of
their nation.

The conservative government talks about these events as being removed from
our time and values. Not discussed by anyone in this context is the reality that in 1949
Australia ratified an international treaty that defined forcible removal of children as a
crime in international law, yet continued a vigorous practice of removal after that date.
Repeal of the "removal" laws began only in 1964, and continued, one state at a
time, through till 1984. The last blatant removal of a child was in Perth in 1970, when
the authorities defied a judge's order to restore a child to its natural parent. Others,
not so blatant, went way beyond 1970. The "assimilation factories" ceased very
recently: the Retta Dixon Home in Darwin in 1980, Sister Kate's Home in Perth in 1987, St
Francis Home and Colebrook in South Australia in 1957 and 1978 respectively, Bomaderry in
New South Wales in 1988. How do we date "yesteryear"? Many of the stolen are of
the age of the Prime Minister and the Minister for Aboriginal Affairs - and the ages of
their children. Barbara Cummings is alive and well, or as well as being raised in the
Retta Dixon home has allowed. Her Take This Child is the recognised history of
removal, and recent removal, in the Territory [91].

The problem of removal is not confined to past generations: it goes on
affecting many people alive today. Removal may affect future generations, especially if
the ideas of Western Australia's Police Commissioner, Bob Falconer, come to

page 45 -

fruition. Deploring what he calls "Fagin-like behaviour" -
Aboriginal families sending children "barely able to see over the counter" to
rob fast-food outlets - he suggests that such children ("too young to be
charged") be removed from their families and placed with suitable carers [92]. His "call" has been backed by the
Premier, Richard Court. Falconer's suggestion is born out of realism, he claims, not
racism; further, "this will not create another stolen generation". He may well
have a genuine concern for children likely to become "hardened criminals by the time
they are 14 or 15", but one has to ask whether such a suggestion could emanate from
any Commissioner about white children. The mindset of Western Australians has a long
history.

In this decade there has been an interesting development in the Western
world: a growth of genocide denialism, but at the same time a willingness by some
governments to make sense of themselves as a people, to face their national history, to
acknowledge it, to express regret, and to offer some form of reparation or restitution.
East Germany said "sorry" to the Jews minutes before reunification, and Poland
followed suit. "One cannot dwell constantly on memories and resentments",
intoned FranĮois Mitterrand in 1994. Even so, the (late) President found the flowers to
half-atone for the deportation of so much of French Jewry. In New Zealand, the 1840 Treaty
of Waitangi has been ruled a legally enforceable instrument, resulting in a special
Waitangi Tribunal which listens to Maori claims and makes substantial compensations - such
as the Ngai Tahu (South Island) settlement of 1997. The Crown has apologised for its
failure "to act towards Ngai Tahu reasonably and with the utmost good faith"; it
has restored Maori authority over lakes, mountains and other properties; and provided, at
least, $170 million in compensation [93]. South
Africa has faced the horrific past, at least the past from 1960, through its Truth and
Reconciliation Commission, and there is ongoing discussion about the size and nature of
reparation. A possibly noble but very flawed exercise, the TRC at least exhibited the
recent past and limited the lie that began in April 1994 - that only a handful of white
South Africans was complicit and every other white citizen was either opposed to
the system or was a closet freedom fighter. There are at least 27 other nation states with
justice and reconciliation mechanisms in operation. Canada's Royal Commission on
Aboriginal Peoples concluded in 1996 that "there must be an acknowledgment that great
wrongs have been done

page 46 -

to Aboriginal people", the 506,000 Amerindian and Inuktitut who now
form 1.7 per cent of the population; that the premises of the philosophy "all
Canadians are equal are very wrong"; that the "equality approach", which
ignores inequalities, "is the modern equivalent of the mindset that led to the Indian
Act, the residential schools, the forced relocations - and the other
nineteenth-century instruments of assimilation" [94].
Above all, both Canada and the United States have accorded "first nation" status
to Indians, recognising them as people who had prior occupation, sovereignty and
governance, and have engaged them in true conversation about renegotiating understandings,
treaties, compacts. We shrink and retreat from any and all such notions. We have an
(embattled) official Aboriginal Reconciliation Council, but a national government intent
on deflecting, playing down or distorting the past, rigid in its adherence to a philosophy
of One Australia in which all are equal, irrespective of both historical and present-day
inequalities. If the former colonial dominions were to be viewed as competing to address
the past as a way of confronting the present and future, Australia - the land of Olympism
- would be running a clear last.

In the ABC's "Four Corners" program on the eve of the 1998
election, John Howard conceded that his greatest mistake in his first term of office was
the tone of his speech, and his refusal to announce a formal Commonwealth apology for the
removal of children to the National Reconciliation Conference in Melbourne in May 1997 [95]. "Our history is not without blemish",
he conceded - after two and a half years of asserting something very different [96]. Political analyst Gerard Henderson has suggested
that there are "signs of a softer Howard [97]",
and the Prime Minister himself has declared his "re-invention" for the new
millennium [98]. The Prime Minister has, however,
refused to consider a treaty: that implies two nations, he argues, a notion he
"will never accept". He contemplates a pact - "a document which
would attempt to, sort of, set some of these things out". On the other hand, the
Reverend Tim Costello has criticised Howard's desire for a written understanding from
Aborigines that their "first and foremost allegiance is to Australia and nothing
else": this, he says, sounds

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like "Deutschland Uber Alles" - "it reveals a homogenising
instinct" [99]. It may be possible for a
"softer", re-invented Howard to construct an observable strategy for
"reconciliation", one that enables better relations with Aboriginal leaders and
communities. To this end, he has made a significant appointment - of Phillip Ruddock,
Minister for Immigration, to be responsible for the separate portfolio of reconciliation [100]. Ruddock has a sensitive and an abiding
interest in Aboriginal issues. But his appointment and the new strategy cannot work in the
absence of a formal, national apology. An editorial view is that reconciliation implies a
meeting of hearts and minds, "not a patronising attempt to dictate the terms of a
relationship", a relationship that must begin with apology. [101] Robert Manne describes the Prime Minister's belief that he can
deny the recent past, refuse to apologise, and keep his reputation intact as
"symptomatic of a kind of blindness which, in parts of Australia, has not yet been
overcome" [102]. With blindness there is
also deafness: the senior conservative leaders have no real conversation or dialogue with
Aborigines, and if there is "consultation", any opposition to the ruling mindset
is simply not heard [103]. It seems unlikely that
Mr Howard can ever locate within himself a sense of real understanding and true
appreciation of the recency of so much Aboriginal mistreatment, or "find" a
genuine respect or even liking for indigenous Australians, or come to see the truth of the
venerable Aristotelian doctrine that treating unequals equally is as unfair as treating
equals unequally.

Archie Cameron and Leslie Haylen were wrong 50 years ago: Australia's
behaviour is before the bar of public opinion, it is on the international conference
agenda, and genocide here is now "thinkable". Minogue is quite

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wrong when he argues that Aborigines, or apologetic breast-beaters, or
scholars like Professor Raimond Gaita have "coined" genocide simply in order to
escalate a national issue into an international one. The World Association of Genocide
Scholars, meeting in Montreal in 1997, discussed the Australian case and passed strong
resolutions addressed to the Prime Minister [104].
The matter isn't, as the Prime Minister would have it, a relatively minor, purely domestic
issue. It will haunt. In the Kruger case, Justice Mary Gaudron stated that "if
acts were committed with the intention of destroying the plaintiffs' racial group, they
may be the subject of action for damages whether or not the Ordinance was valid" [105]. Indeed, a multitude of civil suits is under
way [106]. In essence, these cases rest on six
causes of action: wrongful imprisonment due to unlawful conduct, unlawful or ultra
vires conduct, breach of duty of guardian, breach of statutory duty, breach of
fiduciary duty, and breach of duty of care. The purpose of these cases won't be so much a
matter of massive damages as an acknowledgment that "things" were done, that
they were an evil, worthy of an apology, even a token one, and a token of atonement [107]. The Christian Brothers have done all of that
for their history of sexual abuse in religious schools. The Commonwealth's defence in
these cases will rest on the "legitimacy" of the beliefs of the time, on the
argument, used by Joe Gullett about the German generals on trial, that they "carried
out their duties as best they could", acting "according to their lights"
and "in accordance with the ethics of their profession". The $63 million finally
allocated to Aborigines by the federal government is said to be not compensation, not
restitution for what were, most dubiously, "legitimate" beliefs at the time, but
funding for counselling services, for efforts to reunite families and for the compilation
of histories and genealogies of people affected by these practices.

There has been an emotional, even an hysterical, response, to the word
genocide. This century has seen several particularly well-documented episodes of the
removal of children. The Turks killed close to 1.5 million of their Armenian citizens
between 1915 and 1923. One "choice" for Armenian parents

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was to save their Christian children by "giving" them to Turkish
Muslim families. Turkey ferociously denies these events and rejects all talk of
restitution. Of importance in our context is the origin of Article II (e) in the
Convention. Certainly Lemkin, Donnedieu de Vabres and the other drafters of the Convention
didn't seek to include "the forcible removal of children from one group to another
group" on the basis of the Jewish experience. Jewish children had no such Armenian
choice. Clearly they had the latter's case in mind. They may have had a thought for the
200,000 Polish children who were taken by Nazis to Germany to be raised as physically
desirable Aryans. Again, they may have been well aware of the Swiss practice of removing
Romani (Gypsy) children over the decades. Both Raphael Lemkin and the United Nations
(especially the Greek delegate, Vallindis) ensured that removal of children, and hence
their disappearance through assimilation, was a (physical) genocidal act. Jacqueline Jago
has evaluated Aboriginal child removals in Canada and Australia [108]. Canada's Indian Act saw to it that Indian children were
forced off reservations into schools where the stated aims were "religious
instruction and cultural assimilation". That Australia sits alongside some strange
bedfellows is perhaps reason enough to wriggle out of a verdict of genocide.

Sir Ronald Wilson, the former High Court judge who chaired the National
Inquiry, was accused, among many other things, of "intemperate slander" [109]. His detractors, the Inquiry's critics, the
"senior" denialists of Australian history, do not see, nor do they wish to see,
the causal chains that begin with the incursions of settlers, the destruction of
environments, the "rough work", the genocidal impulses of the squatters, the
segregation-protection era of reserves, settlements and missions, the legislation which
always proclaimed itself to be for "the physical, mental and social welfare" of
the people, the dismissal of Aboriginal values and their evaluation as less than human,
the creation of chronic dependency, and the (continuing) practice of institutionalisation,
something which even Neville, a pioneer of forced assimilation, for once correctly saw all
too clearly - "that coloured races all over the world detest". It is that very
premeditated institutionalisation - whether on Christian missions, cattle stations,
government settlements and reserves, assimilation homes, dormitories, juvenile

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facilities and prisons - that helps explain the degradation, disease and
premature dying over these past two hundred years.